The High Court (Chancery Division) recently dismissed an appeal that concerned the removal of an executor of his parents’ estate and a trust created by them. The Court upheld the earlier decision that removed Julian due to his conduct.
The initial issue surrounded Julian being appointed as executor of his parent’s estate and Trustee of a family trust. His appointment was challenged by his siblings, Nick and Leessa, both of whom raised serious concerns regarding his conduct. The siblings were successful in the removal of their brother however, he appealed this decision. Julian argued that his appeal was legitimate as he had been granted permission to pursue it.
The Court ultimately upheld the original decision made however, in Julian’s appeal he resisted indemnity costs and sought to be reimbursed for his own costs from the estate and trust fund. The respondents stated that Julian had refused mediation, pursued unnecessary factual enquires and advanced unjustified claims that warranted indemnity costs.
The High Court ruled that:
- Julian’s conduct justified his removal as executor and trustee;
- The respondents be awarded costs to be assessed on the indemnity basis due to Julian’s unreasonable behaviour during the litigation;
- Julian was not awarded indemnity in respect of his costs from the estate as his appeal was considered to be self-serving and not in the interest of the estates or trust;
- A payment on account of £38,832.00 to be paid by Jullian by 20 October 2025; and
- 2% above the interest rate applied to costs.
In recent cases, the courts have highlighted how the conduct of parties can impact decisions that are made in respect of the case as a whole and costs. In this case in particular, the court considered that, where a person is acting for personal gain, this can lead to their removal as an executor and result in cost sanctions being imposed, that the courts will impose indemnity costs where the conduct of a party frustrates ADR/mediation or inflates litigation and that the right of an executor/trustee to an indemnity for costs from the estate is not absolute. A trustee or executor cannot rely on estate funds to fund their actions when they are self-serving.
Fernandez v Fernandez and another [2025] EWHC 2530 (Ch)
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Faye Dunkley is an Associate in our expert Dispute Resolution team, specialising in inheritance and Court of Protection disputes.
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